Free Miguel Tejada—A Commentary by Aaron Zelinsky ’10

The following commentary was posted on The Huffington Post on February 13, 2009.

Free Miguel TejadaBy Aaron Zelinsky ’10

Yesterday, Miguel Tejada became the first high-profile major leaguer to be convicted of a crime in the Era of Juice. He pled guilty to charges of withholding information when questioned in 2005 by congressional staffers about Rafael Palmeiro's steroid use. There are those who will call this the first true step taken to clean up the nation's game.

Unfortunately, that's wrong. The charges against Tejada are more suspect than Barry Bonds's late-career forehead growth.

Tejada wasn't under oath, before Congress, or interviewed by law-enforcement personnel at the time he lied. Tejada was interviewed by congressional staffers in a Baltimore hotel room. The criminal law should not be employed to give congressional staffers, who have little training and less accountability, the power to conduct interrogations that carry the potential penalty of prison time.

According to the government, Tejada's lies about a teammate's steroid use violated 2 U.S.C. 192, entitled "Refusal of witness to testify or produce papers." 2. U.S.C. 192 provides:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $ 1,000 nor less than $ 100 and imprisonment in a common jail for not less than one month nor more than twelve months.

The government's complaint alleged that Tejada "unlawfully, willfully, and knowingly did make default by refusing to state fully and completely the nature and extent of his knowledge of and discussions with other MLB players . . . regarding . . . use of steroids and HGH."

There are three problems with the charge to which Tejada pled.

First, the criminal complaint nowhere alleges that he was "summoned as a witness by the authority of either House of Congress," only that he was interviewed by congressional staffers in a Baltimore hotel. Under the terms of the complaint (and the facts as we know them), Tejada's conduct did not fall under 2 U.S.C. 192. I can find no reported case in which 2 U.S.C. 192 was previously used to prosecute an individual for lying to congressional staffers. However, Section 192 does have a long and dismal history: You may remember it from such all-star prosecutions as the House Un-American Activities Committee's actions against people who refused to testify in the 1950s.

Second, the Tejada prosecution is hypocritical. If misleading congressional staffers on a subject related to a hearing qualifies as a crime, then thousands of people, including most members of Congress, ought to be locked up for daily bending the truth as part of political life in Washington. "I respect the honorable Senator even as I disagree with him." "The bridge to nowhere is vital to our national security." Are these every day falsehoods to be the subject of prosecution or just ball players' failures to tell the truth?

Third, the Tejada prosecution cheapens the oath to tell the whole truth and nothing but the truth. An oath is the way our legal system signals to the witness that he has a heightened, legally enforceable obligation to tell the truth. The prosecution of Tejada, however, makes that oath meaningless and unnecessary. If this application of Section 192 stands unchallenged, anytime an individual is questioned by a staffer on an issue related to congressional hearings, he is effectively under oath. The oath is our way of providing notice: "This is serious. Tell the truth." If the oath is effectively always in play whenever talking to a congressional staffer, then it's really never in play.

In fact, there's an alternative to the unseemly prosecution of Miguel Tejada: Instead of imaginative prosecutors stretching the law to go after stupid lies in hotel rooms, baseball should take strong, decisive, and immediate action to clean up the game. But that's a whole other story.